State wins appeal on chemicals list order

Monday, July 23, 2018

Joe Leogue

The State has won an appeal against a High Court order which would have compelled it to provide a list of chemicals used by a former air corps technician, who claims his exposure to the substances has severely damaged his health.

Last week, the Court of Appeal ruled the discovery order is an example of the “crisis” facing the legal system due to burdensome orders being placed upon defendants.

Gavin Tobin is one of seven former air corps members taking cases against the State, claiming that they are suffering from a variety of illnesses as a result of their unnecessary exposure to chemicals while cleaning and maintaining the force’s aircraft.

Mr Tobin received the medical opinion of a toxico-pathologist, who stated that his various medical complaints and organic encephalopathy — or brain disorders — are as a direct result of chemicals he used while working at the air corps headquarters at Casement Aerodrome, Baldonnel, in Dublin.

Mr Tobin has suffered depression, anxiety, fatigue, and other complaints, and has been told that these exposures also put him at a greater risk of developing Alzheimer’s and a variety of cancers.

In October 2016, the High Court granted Mr Tobin an order for discovery of the chemicals he used while working at Casement Aerodrome from 1989 to 1999. He had argued he would need a full list of the chemicals he was asked to use during his time in the air corps in order to make his case against the State.

Mr Justice Paul McDermott granted the discovery order and said that “the quantities and dates of purchase and use of chemicals and mixtures and the safety data concerning their handling, application, and use form a highly relevant and important part of the case”.

He further ruled that Mr Tobin “will suffer serious disadvantage in the preparation and presentation of his case if the relevant records sought under these categories are not made the subject of a discovery order”.

However, the State appealed this decision, and earlier this month, Mr Justice Gerard Hogan varied the order made by the High Court. He urged Mr Tobin and his legal team to seek the information through interrogatories or a notice to admit facts.

“A co-operative approach by both parties in respect of these requests might well have the effect of not only reducing considerably the factual issues in dispute, but also obviate the need for any wide-ranging or extensive discovery,” Mr Justice Hogan said in his ruling.

“In its own way, this appeal serves to illustrate the crisis — and there really is no other word for it — now facing the courts regarding the extent of burdens, costs and delays imposed on litigants and the wider legal system by the discovery process as it presently operates.”

“I should say immediately that this is not intended in any sense as a criticism of the plaintiff or his legal advisers. They have quite properly sought to follow and apply the existing discovery rules and practice for the benefit of their client.

“It is rather the existing discovery rules and practice which have become the problem in terms of the burdensome nature of discovery, the significant costs of which are imposed on litigants and, not least, the delays which are entailed in the entire discovery process.”